The Superior Court of Justice of the Canary Islands (TSJC) has ordered the Canarian Health Service to compensate the parents of a child born in March 2012 in the Doctor José Molina Orosa Hospital with 1,200,000 euros for an "incomprehensible negligence" that caused irreversible cerebral palsy in the hours following his birth.
The First Section of the Administrative Litigation Chamber of the TSJC has notified this Friday the judgment upholding the appeal of the child's parents against the first instance ruling, which only ordered the SCS to retract the administrative file and respond to the claim and the request for compensation that the family had submitted in its day. The new ruling, against which another appeal is still possible, declares proven that the "severe spastic tetraparesis" that the child presents today, and that makes him dependent on lifelong assistance, was due to the "incomprehensible negligence produced during the hours following his birth" by the medical professionals who attended the birth. In addition to the compensation, the TSJC condemns the administration to pay the costs of the process in both instances.
According to the TSJC, the amount of compensation is the second highest that a court of the administrative litigation jurisdiction in Spain has established to date for medical negligence. It is only surpassed by the 1.3 million euros that the same chamber of Las Palmas imposed in September 2018, also on the Canarian health administration, for diagnostic error in a hereditary syndrome (Lesch Nyham).
Also, seven months ago, the TSJC confirmed a conviction of the Canarian Health Service for the cerebral palsy caused to a baby in a birth that lasted for more than 13 hours without an urgent cesarean section being performed despite the existence of several indicators that warned of the danger of fetal distress, although, then the compensation that was set for the family, which was from Lanzarote, was 1,025,658 euros.
"Requires multiple lifelong aids"
The rapporteur of this ruling, Magistrate Francisco José Gómez Cáceres, quantifies the damage at 1.2 million euros "based on the fact that the minor has finally been diagnosed with severe spastic tetraparesis cerebral palsy that requires multiple lifelong aids", as well as "the anguish, also lifelong, that is not difficult to imagine will accompany the parents". The chamber confirms the criterion of the instance ruling, which states that in the case "all the requirements are met to declare the existence of patrimonial responsibility of the Canarian Health Service".
In the opinion of the court, there has been "a damage, real, effective, economically evaluable and individualized" as a consequence of the abnormal functioning of the public health service as there is, it says, "negligent action of the personnel of the Canarian Health Service", since "all the physical and neurological sequelae presented by the minor were due to the lack of adequate treatment of the jaundice he presented from the moment of his birth".
The ruling points out that, while the protocols indicate that any early-onset jaundice, within the first 24 hours, should be considered pathological, being more urgent to assess the earlier it presents and that, in the case at hand, "the yellowish color of the child was appreciated at the time of birth, despite which the minor was not examined by any pediatrician until the next day, and when he did, he simply indicated that the neonate should be put in the sun".
According to the judgment, "no test was recommended to try to determine the cause of the jaundice, which prevented its evolution from being assessed later". In addition, "the presence of a cephalic hematoma was ignored, which, together with jaundice, revealed a possible increase in bilirubin in the blood to pathological values, nor was a measurement of the bilirubin level in the blood performed to check whether it was within normal levels".
Subsequently, it recapitulates that phototherapy was applied "20 days after birth" maintaining high levels of bilirubin. However, the court details that when diagnosed with severe hyper bilirubin, "he was not given an exchange transfusion that would have reduced the damage he suffered later". Likewise, once the neurological sequelae were revealed, "he was not referred to pediatric neurology for evaluation".
A disability of 69% and subsequently 98%
The neurological sequelae presented by the minor, according to the ruling confirming the expert evidence, "are due to the inadequate treatment of jaundice, which did not take into account the presence of cephalic hematoma in a child with jaundice as a possible cause of increased bilirubin, which, not being explored at birth, the progression of jaundice was not assessed either and, according to the protocols, the decision to measure bilirubin depends on the time at which the symptoms of jaundice appear, but it must always be done if it appears during 24 hours of birth".
The presence of bilirubin at levels for a prolonged period of time, "caused irreversible damage to the central nervous system by deposition of bilirubin in the globus pallidus (kernicterus)", concludes the resolution, which states that, as a result, the minor currently accuses serious neurological and physiological sequelae, "which has led to the recognition of a disability of 69% and subsequently 98%".
